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Cases

MIGRATION - Migration Act 1958 (Cth) - jurisdictional error - privative clause - jurisdiction of Refugee Review Tribunal (`Tribunal') - failure of Tribunal to address a central element of the visa applicants' claims - visa applicants Iranian women subject to domestic violence - interpretation of phrase `well-founded fear of being persecuted for reasons of membership of a particular social group' - discriminatory inactivity of State authorities

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs ; Mini

SDAV v Minister for Immigration & Multicultural & Indigenous Affairs ; Minister for Immigration & Muticultural & Indigenous Affairs v SBBK [2003] FCAFC 129 (13 June 2003)
Last Updated: 13 June 2003


FEDERAL COURT OF AUSTRALIA
SDAV v Minister for Immigration & Multicultural & Indigenous Affairs

Minister for Immigration & Multicultural & Indigenous Affairs v SBBK

[2003] FCAFC 129


MIGRATION - Migration Act 1958 (Cth) - jurisdictional error - privative clause - jurisdiction of Refugee Review Tribunal (`Tribunal') - failure of Tribunal to address a central element of the visa applicants' claims - visa applicants Iranian women subject to domestic violence - interpretation of phrase `well-founded fear of being persecuted for reasons of membership of a particular social group' - discriminatory inactivity of State authorities

Migration Act 1958 (Cth), ss 65(1), 474(1)

Judiciary Act 1903 (Cth), s 39B

Acts Interpretation Act 1901 (Cth), s 15A

Minister for Immigration and Multicultural Affairs v Khawar [2002] 187 ALR 574 cited

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 not followed

The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

Plaintiff S157/2002 v Commonwealth of Australia [2003] 195 ALR 24 followed

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 cited

NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 cited

Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24 cited

NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 cited

Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 cited

SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 49 cited

SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 cited

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 cited

Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 cited

Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 disapproved

Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 not followed

NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499 cited

Craig v The State of South Australia (1995) 184 CLR 163 cited

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 cited

Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190 cited

SDAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 215 OF 2002

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SBBK

S 142 OF 2002

HILL, BRANSON AND STONE JJ

13 JUNE 2003

SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 215 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SDAV

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
HILL, BRANSON AND STONE JJ


DATE OF ORDER:
13 JUNE 2003


WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)




THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The matter be remitted to the Refugee Review Tribunal for decision according to law.

3. The costs in this appeal be the appellant's costs in the cause.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 142 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT


AND:
SBBK

RESPONDENT


JUDGES:
HILL, BRANSON AND STONE JJ


DATE OF ORDER:
13 JUNE 2003


WHERE MADE:
SYDNEY (HEARD IN ADELAIDE)




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 215 OF 2002

S 142 OF 2002




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
SDAV

RESPONDENT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

APPELLANT




ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SDAV

APPELLANT


AND:
SBBK

RESPONDENT




JUDGES:
HILL, BRANSON AND STONE JJ


DATE:
13 JUNE 2003


PLACE:
SYDNEY (HEARD IN ADELAIDE)





REASONS FOR JUDGMENT
INTRODUCTION

1 The Court has before it two appeals, each from a judge of this Court, that essentially raise the same issues. Both involve persons (together the `visa applicants') who applied for protection visas under the Migration Act 1958 (Cth) (`Migration Act') and whose applications were refused by delegates of the Minister for Immigration and Multicultural and Indigenous Affairs (`Minister'). Pursuant to s 91X of the Migration Act the Court must not publish the names of the visa applicants and they will be referred to as SDAV in respect of the appellant in proceeding S 215 of 2002 and SBBK in respect of the respondent in proceeding S 142 of 2002.

2 The decisions of the delegates were confirmed in separate decisions by the Refugee Review Tribunal (`Tribunal'). Both visa applicants appealed to this Court under s 39B of the Judiciary Act 1903 (Cth) (`Judiciary Act') for review of the Tribunal's decisions. The primary judges both found that the Tribunal had made an error of law by not considering whether the relevant applicant was a member of a particular social group within the meaning of article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (`Convention'). However, the primary judges differed in their views as to whether s 474(1) of the Migration Act protected the Tribunal's decision in respect of such errors. As a result the Tribunal's decision was set aside in relation to SBBK but not in relation to SDAV. The Minister and SDAV respectively appeal against these decisions.

BACKGROUND

SDAV

3 SDAV is a citizen of Iran who arrived in Australia on 13 April 2001. On 6 July 2001 she applied for protection visas for herself and her two children claiming that she is a refugee within the meaning of the Convention. Her children made no separate claims but relied on their mother's alleged entitlement to a visa. The Tribunal accepted the factual assertions made by SDAV in support of her claims. It identified three grounds on which she asserted that she had a well-founded fear of persecution in Iran for a Convention reason but did not accept that she had a well-founded fear on any of these grounds.

4 Before the primary judge SDAV accepted the Tribunal's decision on two of these grounds but challenged the Tribunal's decision on the third and principal ground. This related to her position as a woman who had suffered domestic violence in the course of her marriage and who desired to live apart from her husband and obtain a divorce and the persecution she had suffered because of this.

5 SDAV was born on 22 April 1968 and married in about 1987 or 1988. The marriage was arranged for her and was not a happy one. Her husband subjected her to physical and psychological abuse, including rape, and also physically assaulted her eldest son. SDAV also asserted that she was assaulted by her husband's employer who, when her husband was away with work, would sexually assault her, succeeding in raping her on two occasions. She made two complaints to the Monkerat (Iranian authorities). On the first occasion her husband forced her to withdraw the complaint and on the second occasion the employer bribed the Monkerat to prevent the complaint being investigated. In making the complaints to the Monkerat SDAV did not state that the sexual harassment had culminated in rape as she feared that such an allegation could lead to her being accused of adultery and stoned.

6 SDAV is a qualified nurse who for a time worked as a teacher. From 1996 until January 2000 she worked as a computer operator but ceased this employment following the birth of her youngest child. At about this time she went to live with her parents. She was anxious to separate from her husband and to leave Iran, which she did in January 2001, without her husband's knowledge or consent. She gave extensive evidence about the systematic legal and social discrimination experienced by women in Iran. This was supported by independent country information that pointed to widespread and persistent discrimination.

7 Before the Tribunal SDAV contended that were she to return to Iran she would be persecuted for reason of her membership of one of the following social groups:

* Iranian women who have transgressed the social mores of Iranian society;

* Iranian women who have transgressed the religious tenants and/or social mores of fundamentalist Islamic society;

* Iranian women who reject fundamentalist Islam;

* single mothers in Iran;

* divorced women in Iran and/or women subjected to domestic violence in Iran.

8 The Tribunal stated that it was not satisfied that women in Iran, whether married, single, divorced or with or without children share `a characteristic or element which unites them and distinguishes them from society at large'. It similarly rejected all of the suggested groups as cognisable groups within Iranian society and found that they were not identifiable as social units.

9 Despite this conclusion the Tribunal proceeded to consider whether the ill-treatment that SDAV suffered in the past, or the harm she feared in the future, was because she fell into one or other of the groups referred to in [7] above. The Tribunal concluded that although SDAV's gender and marital status had some connection with the mistreatment she suffered, it had not occurred because of her membership of a particular social group. In relation to much that SDAV feared might happen to her on her return, such as the difficulty of obtaining a divorce, the fact that she might not obtain custody of her children, being discriminated against because of being a single woman raising children or being required to comply with Islamic dress code, the Tribunal did not accept that it would occur or, if it did, that it would amount to persecution.

The primary judge's decision - SDAV

10 The Tribunal's decision was made before the decision of the High Court in Minister for Immigration and Multicultural Affairs v Khawar [2002] 187 ALR 574 (`Khawar'). On the basis of that decision, the country information before it and the Tribunal's acceptance of SDAV's account of the domestic abuse she had suffered and the lack of police protection the primary judge held that the finding that the applicant did not belong to a particular social group is `plainly wrong in law'. His Honour also held that the Tribunal's findings referred to in [8] above:

`...indicate a misunderstanding of the claim which was being advanced by the applicant, namely a claim that she could not obtain appropriate State protection from mistreatment by her husband and her employer. The motives which caused the husband and the employer to mistreat the applicant were irrelevant to this claim.'
11 In relation to SDAV's failure to obtain protection from the State, the Tribunal concluded that her account indicated that some of the State officials were corrupt but not that she was denied protection for a Convention reason. On this point the primary judge commented, at [21]:

`The discussion of the [Tribunal] on this issue, in my opinion, indicates a failure on its part to recognise the relevance of the applicant's evidence to her wider overarching claim that the State protection offered through the agencies of the authorities and the law failed to protect women in her position, as a social group, from abuse by their husbands and other males with whom they had contact by reason of their domestic situations. The [Tribunal] failed to properly address a central element of the applicant's claim.'
12 His Honour went on to say, at [24], that the:

`errors of law by the [Tribunal] in its consideration of whether the applicant belonged to a particular social group, and its failure to address important elements of the applicant's claims, are jurisdictional errors of law of the kind identified in Craig v The State of South Australia (1995) 184 CLR 163 at 176, 178-179. Section 474(1) apart, these errors would invalidate the Tribunal's decision and entitle the applicant to relief by way of judicial review on application under s 39B of the Judiciary Act (Cth)'.
13 The primary judge held, however, that the decision of the Tribunal was a privative clause decision within the meaning of s 474(2) of the Migration Act and therefore the Tribunal's decision was validated by s 474(1) notwithstanding these errors. His Honour's decision was based on the authority of the Full Court's decision in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 (`NAAV'), it having been conceded that none of the three Hickman provisos (see The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) applied in this instance. For that reason his Honour dismissed SDAV's application.

SBBK

14 SBBK is an Iranian citizen born in Teheran in 1968. She was married in 1992 and has one son who was born in 1994. She arrived in Australia with her son, on 13 April 2001. On 24 August 2001 she and her son applied for protection visas. Their applications were refused by a delegate of the Minister and that decision was confirmed by the Tribunal on 21 December 2001.

15 SBBK has a Bachelor of Science degree, completed in 1992, from Teheran University. She worked as a nurse both before and after her marriage. During the marriage SBBK lived with her husband in Tehran. She claims that while married she was often assaulted by her husband because he disagreed with her views on the equality of the sexes. The assaults commenced about two months following the marriage and escalated in the six months prior to their divorce in 1999. She also claims that she was regularly sexually assaulted by her husband and that this was so common in Iran that there was no utility in complaining about it to anyone. Sometimes she was assaulted in front of her son who was also beaten occasionally.

16 Following their divorce, SBBK's husband was given custody of their son and she was granted access. She claims that initially her husband did not allow her the access she had been granted. Later, however, he brought the son to her saying he did not want the boy. Her husband subsequently expressed remorse for his actions and asked her to come back to him. She claims that he made various threats to induce her to return including that he would kill her, their child and himself or that he would throw acid in her face. In order to obtain custody of her son, SBBK subsequently agreed with her husband to a temporary re-marriage (known as a `segheh') for one year. During this period she obtained a false passport and fled Iran with her son.

17 The Tribunal accepted some but not all of SBBK's account of her experiences in Iran. It stated:

`Having considered the independent evidence, and also the matters as discussed with the applicant at the hearing, I consider that she has not been totally truthful about aspects of her history. I consider that she has fabricated parts of her history so as to advance her claims. In particular: I do not accept that she remarried her husband in a temporary marriage; and, I do not accept that she does not have legal custody of the applicant son. I note particularly that the applicant has described her marriage to her husband in very violent and demeaning terms, he beat her for many years and sexually assaulted her repeatedly and beat their son. She had different views from him; he threatened to kill her, the son and tried to kill himself on two or three occasions. The type of divorce obtained by the wife is one whereby it must be initiated by the wife, .... I do not accept as reasonable that the applicant would temporarily remarry the husband given her history of problems with him, and her having divorced him only months before in a process whereby she had to maintain that she was repulsed by him. I do not accept that she did this so as to obtain custody and consider that she obtained custody from the husband, and that this arrangement was confirmed through the court processes.
...

I am prepared to accept that the applicant is a divorced woman, that she has obtained legal custody of her son as a result of the husband's inability to care for him and him giving the child to her. I accept that she wished to take the child out of Iran and the husband objected. I note that the independent evidence does indicate the father retains guardianship and that his permission must be obtained to enable the child to be taken out of the country. She has done this without the consent of her ex-husband, and added the applicant son's name to her passport illegally.'

18 The Tribunal did not accept that there is a particular social group, within the meaning of the Convention, that would apply to SBBK. It noted that social groups suggested to it included women or divorced women in Iran or either of these groups with the additional qualification as being subject to domestic violence. It rejected all these suggestions noting that a social group cannot be defined by the harm feared.

19 The Tribunal did not accept that the family problems that SBBK said she would face on return to Iran would amount to persecution. While accepting that the position of women and her own position would concern her, the Tribunal did not accept that the social restrictions and the problems she would face in this respect could be considered persecution under the Convention. The Tribunal also found that any likely response by the husband to SBBK taking his passport and using his cheque book to pay for her journey to Australia would not be for a Convention reason nor would any action by the authorities in respect of these actions be for a Convention reason.

20 The Tribunal also did not attach any weight to the sur place claim based on the son's alleged conversion to Christianity holding that this was not a genuine claim but was done, on the direction of his mother, to enhance their claims to protection visas. The Tribunal also rejected a psychologist's report as not helpful as it addressed matters that were for the delegate and the Tribunal such as the assessment of evidence and the credibility of the applicant.

The primary judge's decision - SBBK

21 The primary judge summarised the claims made by the applicant and continued:

`It is clear from the claims before the RRT, that the applicant's principal claim was that she had been unable to obtain protection from the authorities or State agencies from physical abuse and rape by her husband. Furthermore, she claimed she was unable to obtain the protection of the law against anticipated violence from her husband and from her husband's denial of her rights. She feared that her son was at serious risk of harm and neglect. She said that because of cultural influences, including religion, the laws, and the court system discriminated against women in her position to such an extent that she was without State protection. This can properly be described as a claim of discriminatory inactivity on the part of the State or State authorities.'
22 The primary judge referred to the Tribunal's rejection of the suggested social groups to which the applicant might be said to belong (see [18] above). His Honour stated that the Tribunal had made the same error as that identified in Khawar, where the High Court held that `discriminatory inactivity' of State authorities in responding to the violence of non-State actors could amount to persecution. His Honour found that the Tribunal's reasoning was contrary to the reasoning in Khawar and that the Tribunal had erred in law, namely in that it dismissed, without any consideration, the possibility that the respondent could be a member of a particular social group which may be either women in Iran or divorced women in Iran. The primary judge further commented:

`The reasons for decision focus only on the question whether the added references to possible harm could define a social group. In so doing the decision fails to come to terms with the central issue of group identity. Until this issue has been addressed and determined it is not possible for the decision-maker to determine whether there is a real chance of persecution as a consequence of being a member of that group. Furthermore, the [Tribunal] decision does not make a determination as to the availability of protection by the State or State agencies against violence or threatened violence to women in Iran.
In my opinion the failure by the [Tribunal] to consider and determine the applicant's claims in relation to membership of a particular social group is a fundamental error of law because it demonstrates that the essential issue for determination by the [Tribunal] has not been considered. It was therefore in my view not possible for the [Tribunal] to reach the state of satisfaction required by s 65 of the Act in refusing the visa application.'

23 In relation to the Tribunal's decision that the general position of women in Iran could not amount to persecution the primary judge also referred to Khawar, where the High Court held that `discriminatory inactivity' of State authorities in responding to the violence of non-State actors could amount to persecution. His Honour found that the Tribunal's reasoning was contrary to the reasoning in Khawar and that the Tribunal had erred in law.

24 The primary judge held that the Tribunal's decision involved a jurisdictional error not protected by s 474(1) of the Migration Act. His Honour allowed the application and remitted the matter to the Tribunal for review.

REASONING

25 The primary judges who considered the applications of SDAV and SBBK found that in each case the Tribunal had made a jurisdictional error. Their Honours came to different conclusions, however, as to whether those errors were protected from judicial review by s 474 of the Migration Act. These appeals challenge both decisions and raise two main questions:

(a) whether the primary judges were correct in their findings of jurisdictional error; and if so

(b) whether, taking into account the effect of s 474 of the Migration Act, the jurisdictional errors made by the Tribunal are grounds for relief in this Court.

26 Both decisions were made before the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] 195 ALR 24 (`Plaintiff S157') in which the interpretation of s 474 was a crucial issue. The High Court held that a decision made in breach of the requirements of natural justice was affected by jurisdictional error. As such it was not a privative clause decision within the meaning of s 474(2) of the Migration Act because, in the words of the section, it was not made `under this Act'; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [75]-[78], see also Gleeson CJ at [19]. Callinan J expressed a similar view at [159] although his Honour speculated that it might be that `no less than a grave, or serious breach of the rules of natural justice will suffice'.

27 The statement that a particular error is a `jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff S157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made `within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a `jurisdictional error' and as such it cannot be a valid action or decision.

28 In relation to statutory jurisdiction, such as that of the Tribunal, a conclusion as to the full extent of the jurisdiction granted, that is whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute, in this case the Migration Act. When the statute contains a privative clause there is an inevitable tension between the privative clause and those parts of the statute that confer jurisdiction. As Gleeson CJ commented in Plaintiff S157 at [17]:

`The essential problem is the inconsistency between a provision in a statute, or an instrument, conferring a limited power or authority, and a provision which appears to mean that excess of power or authority may not be prohibited.'
Resolving that tension involves the process of reconciliation referred to by the High Court in Plaintiff S157.

29 There are, of course, constitutional limits to the jurisdiction that may be granted to the Tribunal. The legislature cannot give the Tribunal power in excess of its own constitutional power. Whether the constitutional limits have been exceeded is a question of interpretation that must take into account, inter alia, the provisions of s 15A of the Acts Interpretation Act 1901 (Cth). If those limits have been exceeded it will not be possible to reconcile the privative clause with other statutory provisions. Similarly the legislature cannot impose limits on the authority of the Tribunal (with the intention that acts done outside those limits are invalid) and deprive the High Court of its power under s 75(v) of the Constitution to restrain such acts by the issue of a constitutional writ; R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616, Plaintiff S157 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [53].

30 Within those limits, however, the legislature may grant wide or narrow jurisdiction and the scope of jurisdictional error will vary correspondingly. In construing the statute to determine the scope of the jurisdiction granted due regard must be had to the intention of the legislature in enacting the privative clause. In Plaintiff S157, the High Court, while rejecting the argument that s 474 effected an implied repeal of all statutory limitations and restraints, noted that an effect of the section might be that `some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision'; per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [69]. Their Honours pointed out, however, that this could only be determined in the context of a particular case.

31 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1 (`Applicant S134') Gaudron and Kirby JJ referred to the necessary attempt to reconcile an apparent conflict between a privative clause and a statutory provision imposing limitations or restraints upon jurisdiction or power. Their Honours recognised, at [79], that reconciliation may not be possible and commented, at [81] that:

`reconciliation of a particular provision with s 474 of the Act is very difficult, if not impossible, if, as in the case of s 65(1) of the Act, there is detailed specification of conditions which must be satisfied before a particular act can be done or a particular decision taken and there is also prescription of the precise act that must be done or the precise decision that must be reached if the specified conditions are met.
32 Gleeson CJ made a similar point in Plaintiff 157 when he noted at [19]:

`The outcome of that process [of reconciliation] may be that an impugned act is to be treated as if it were valid.
...

On the other hand it may be that... the impugned act is not to be treated as if it were valid. In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a "decision" within the meaning of the privative clause. In a case such as the present, it may involve a conclusion that a purported decision is not a "decision ... under this Act" so as to attract the protection given by s 474.'

In the former case, the act is done within the jurisdiction of the Tribunal; in the latter, it is an unauthorised act and is therefore invalid.

33 It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act. As such the process does not distinguish between jurisdictional errors that are and are not protected by the privative clause. It distinguishes between errors that are jurisdictional errors and those that are not jurisdictional errors. This analysis accords with the view expressed by a number of other Full Courts, exemplified by the following comment from NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 (`NAEB') at [4]:

`The High Court has now held that the approach to the construction and application of s 474 adopted in NAAV, and many other decisions of this Court, was wrong: S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, [2003] HCA 2. Section 474 is not, that decision holds, effective to protect jurisdictional errors.'
See Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24, NALU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 31 at [13], Applicant NAOB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 33 at [11], SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 49 at [17], SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 at [27]-[28] per Madgwick and Conti JJ, Gyles J dissenting, SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 121 at [18]-[21] and Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 at [20]-[21].

34 The above analysis leaves no room for the approach adopted in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 at [13] (`Lobo') namely that the scope of Plaintiff S157 is limited to cases involving a breach of natural justice or procedural fairness. While it is true that a failure to accord procedural fairness was the particular error with which the High Court was concerned in Plaintiff S157, the principles of interpretation laid down by the High Court in that case are of wider application. We agree with the comments of Madgwick J in his dissenting judgment in Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 at [11] and with Hill J in NACP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 499 at [28]-[30].

35 The nature of jurisdictional error which will enliven the court's power under s 39B of the Judiciary Act was discussed in Craig v The State of South Australia (1995) 184 CLR 163 (`Craig') at 179 and in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 (`Yusuf') where McHugh, Gummow and Hayne JJ said at 351:

`"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise that in accordance with the law.'
36 More recently, the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 (`Dranichnikov') had occasion to consider the question of jurisdictional error. Mr Dranichnikov's claim to have a well-founded fear of persecution by reason of being a member of a particular social group was rejected by the Tribunal. Mr Dranichnikov alleged that the Tribunal had wrongly determined his claim on the basis that the relevant social group was businessmen when his claim was to membership of a more limited group, namely businessmen who took a public stance against the failure of law enforcement authorities to take action against crime. The majority of the High Court accepted this criticism; Gummow and Callinan JJ (with whom Hayne J agreed) at [23] and Kirby J at [64]. Gummow and Callinan JJ commented at [30]:

`The Dranichnikovs' case as presented to the Tribunal has in common with Ms Khawar's case, an apparent deliberate abstention by the authorities from the affording of protection to a member of an identified group.'
37 The High Court held that the Tribunal's error amounted to a failure to accord natural justice and a constructive failure to exercise jurisdiction; Gummow and Callinan JJ (with whom Hayne J agreed) at [24]-[25] and Kirby J at [88]-[89].

38 Mr Dranichnikov's application to the Tribunal was decided before s 474 was introduced into the Migration Act and therefore the case did not raise any question of privative clause decisions or the extent of the protection of s 474. It did, however, raise the question of the availability of relief by way of constitutional writs under s 75(v) of the Constitution and for that reason the validity of the Tribunal's decision was squarely in issue. On that question of principle all members of the court were in agreement as to the availability of that relief. Although Gleeson CJ had a different understanding of the reasons of the Tribunal and on that purely factual issue dissented from the majority view, his Honour stated, at [1], that there was no disagreement of principle between him and the other members of the court. Kirby J expressed that principle as follows:

`This Court has repeatedly held that, for the issue of prohibition or mandamus under s 75(v) of the Constitution, it is necessary to demonstrate jurisdictional error on the part of the proposed subject of such relief. Thus, it is essential to establish something more than an error of law within jurisdiction. Difficult as it may be sometimes to differentiate jurisdictional and non-jurisdictional error with exactitude, in a case where there has been a fundamental mistake at the threshold in expressing and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction. It will be treated as a constructive failure of the decision-maker to exercise the jurisdiction and powers given to it.'
39 On application of that principle the Court made orders for writs of certiorari, prohibition and mandamus resulting in the Tribunal's decision being quashed and the matter being remitted to the Tribunal for review according to law.

Was there jurisdictional error on the part of the Tribunal?

40 The Minister contends that in each of SDAV and SBBK the primary judge erred in finding that the Tribunal had made a jurisdictional error. The Minister's contention is founded on two limbs. Firstly, that having regard to the `reconciliation' process described in Plaintiff S157 any failure identified in the Tribunal's application of the criterion in question (whether each appellant was part of a particular social group) is not such as to invalidate the decision; and secondly that the primary judges erred in that the Tribunal in each decision specifically adverted to the possibility that the appellants might have been members of a particular social group. As such, it is submitted, it is clear that the Tribunal understood the claims and the Convention ground and acted within its decision-making authority in concluding that the appellants were not members of such groups.

41 The visa applicants claim that the Tribunal erred in the manner identified by the two primary judges, namely that in each case the Tribunal failed to address properly a central element of their claims. These errors, as identified by the primary judges, are described in [11] above in relation to SDAV's claim and in [22] above in relation to SBBK's claim. The visa applicants claim that the nature of the Tribunal's error is the same as that of the Tribunal in Khawar.

42 The applicant in Khawar was a citizen of Pakistan who claimed that she was the target of domestic violence at the hands of her husband. The Tribunal accepted her claims about the violence she has suffered but held that her husband's motivation for harming her was personal rather than because she was a member of a particular social group. Because the Tribunal came to this conclusion it failed to make findings of fact on two important aspects of the applicant's claim namely that the Pakistani authorities failed to assist her in respect of her husband's violent behaviour and that this violence was tolerated and condoned by the authorities as `an aspect of systematic discrimination against women, involving selective enforcement of the law'; per Gleeson CJ, at [25]. The Chief Justice accepted that if the applicant could make out this claim then she would be able to establish persecution. His Honour continued at [31]:

`Where persecution consists of two elements, the criminal conduct of private citizens, and the toleration or condonation of such conduct by the state or agents of the state, resulting in the withholding of protection which the victims are entitled to expect, then the requirement that the persecution be by reason of one of the Convention grounds may be satisfied by the motivation of either the criminals or the state. ... If her contentions, as to which no findings have yet been made, are correct, then Ms Khawar was being abused by her husband and his relatives for personal reasons, but her likely subjection to further abuse without state protection is by reason of her membership of a particular social group, if it be the case that women in Pakistan may be so described.'
43 The High Court held that it was open to the Tribunal to find that the applicant was a member of a particular social group whether women in Pakistan or some narrower social group; Gleeson CJ at [32], McHugh and Gummow JJ at [81]-[83] The Tribunal's error was that, because it had rejected this possibility, it had failed to make the necessary findings of fact.

44 As described above SDAV and SBBK both claimed to be members of a particular social group within the meaning of the Convention; see [7] and [18] respectively. Both complained of the systematic and discriminatory failure of the State authorities to protect them. We agree with the primary judges that the Tribunal misunderstood the nature of the claims being advanced and consequently failed to consider essential aspects of the claims actually made. The Tribunal made the same error as was identified in Khawar and Dranichnikov; it failed to consider a central element of the visa applicants' claims.

45 There is no suggestion in either of these appeals that the Tribunal acted in anything other than good faith. The decision in Plaintiff S157 establishes that the appellants are entitled to natural justice from the Tribunal. Gleeson CJ said, at [37]:

`People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If parliament intends to provide that decisions of the tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention.'

46 The visa applicants claim that it is a condition precedent to the exercise of the jurisdiction to grant or refuse a visa under s 65(1) of the Migration Act that the Minister must decide if he is satisfied as to each of the matters set out in s 65(1)(a)(i)-(iv). This, it is submitted, is an essential requirement if the Minister's action in granting or refusing a visa is to be valid. In Applicant S134 Gaudron and Kirby JJ noted that s 65(1) of the Migration Act applies to all visa applications, not merely applications for protection visas and referred to the fact that the regulations prescribe detailed criteria for various kinds of visas. They concluded:

`In light of the detailed specification in the regulations of the criteria for the grant of various classes of visa, it is impossible to treat the consideration by the decision-maker of the relevant criteria and his or her satisfaction or lack of satisfaction in that regard as other than conditions precedent to a valid decision to grant or refuse a visa under s 65(1) of the Act.'
47 Even after undertaking the reconciliation process discussed in Plaintiff S157 the Tribunal's decisions, in failing to give effect to the principles articulated by the High Court in Khawar and Dranichnikov, misconstrue a criterion about which a decision-maker must be satisfied. The decisions are affected by jurisdictional error; they are invalid and cannot be said to be `privative clause decision within s 474(2) of the Act'.

48 This reasoning also addresses the second limb of the Minister's argument. Although the Tribunal specifically addressed the question of whether the appellants could belong to a particular social group it based its decision on reasoning that the High Court has held, in Khawar, to be flawed and which it held in Dranichnikov to amount to jurisdictional error. Indeed, in considering each of SDAV and SBBK the Tribunal appears to have made exactly the `error of law involving an incorrect interpretation of the applicable law' identified by Branson J at first instance in Khawar v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 190 at 197.

49 The Minister has submitted that the decision of the primary judge in SDAV amounted to a conclusion `that the Tribunal ought to have found that the appellant was a member of a particular social group'. Although in light of Khawar any other finding may be virtually impossible to support, that is a matter for the Tribunal. In our opinion, however, the primary judge was silent as to what the Tribunal should have found in fact. His Honour addressed himself only to the Tribunal's error of law involving an incorrect interpretation of the applicable law.

50 For the reasons given above we are satisfied that the decisions of the Tribunal in relation to each of SDAV and SBBK were affected by jurisdictional error and were not protected by s 474. The appeal in the case of SDAV, proceeding number S 215 of 2002, should be allowed and the matter remitted to the Tribunal for decision according to law. The costs in this appeal should be the appellant's costs in the cause.

51 The appeal in the case of SBBK, proceeding number S 142 of 2002, should be dismissed with the appellant to pay the respondent's costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 13 June 2003

Counsel for the Appellant (S 215 of 2002) and for the Respondent (S 142 of 2002):
Mr C Maxwell QC, with Mr S Ower






Solicitor for the Appellant (S 215 of 2002) and for the Respondent (S 142 of 2002):
Bourne Lawyers






Counsel for the Respondent (S 215 of 2002) and for the Appellant (S 142 of 2002):
Mr J Basten QC, with Dr M A Perry






Solicitor for the Respondent (S 215 of 2002) and for the Appellant (S 142 of 2002):
Sparke Helmore






Date of Hearing:
6 November 2002






Date of Judgment:
13 June 2003


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